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Wakenna Dowell v. Hossein Ameri

January 26, 2012


On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Passaic County, Docket No. DC-14560-10.

Per curiam.


Submitted December 21, 2011

Before Judges Sapp-Peterson and Ostrer.

Defendant Hossein Ameri appeals from the order of the Law Division, Special Civil Part, awarding judgment of $1550.34 to plaintiff, Wakenna Dowell, after a bench trial. We affirm.


Dowell and Ameri had entered into a consent order resolving a summary dispossess action that Ameri, as landlord, had filed against Dowell, his tenant. In January 2010, Dowell entered into a one-year lease for an apartment in the first floor of a house on North First Street in Paterson. The monthly rent was $775, and the lease required a security deposit equal to one-and-a-half months' rent. The summary dispossess action filed April 8, 2010 alleged that rent and various charges were due and unpaid for March and April. Although the record before us does not include Dowell's answer to the summary dispossess complaint, Dowell's subsequent Small Claims Division complaint against Ameri, which we discuss at greater length below, alleged that she had obtained Ameri's oral permission in mid-March to vacate the apartment and terminate the lease because recent flooding in Paterson had affected living conditions at the apartment.

Under the consent order dated April 29, 2010, Dowell was conditionally relieved of any duty to pay additional money provided she vacated in just over two weeks.*fn1 The order provided, "Landlord waives any right to collect rent so long as tenant vacates on or before May 15th 2010 4:30, and landlord to file for warrant today, 4-29-10; but warrant shall not execute before May 15th 2010." Dowell agreed to the entry of a judgment for possession against her. She agreed not to seek any further extensions of her tenancy. Ameri also promised to give twenty-four hours notice before showing the apartment.

Dowell filed a complaint in Small Claims Division July 14, 2010 claiming that she vacated the apartment timely, but Ameri refused to return her security deposit. She demanded payment of $2326, equal to twice her security deposit. She alleged:

Per mediation agreement I was to terminate the premises by May 15th & the legal notice indicated May 19th. The premises were vacated on time and left in move in conditions. I attempted to give Mr. Ameri his keys and each time we were to meet he never showed up. I vacated his premises and new tenants are now occupying the premises and as of 7-12-10 I have not received my security deposit. I called Mr. Ameri several times[.] I finally spoke with him on 7-9-10 and he advised that he owes me nothing and began to argue, I advised him no problem and filed the complaint.

Ameri filed a counterclaim on August 3, 2010 alleging that Dowell had breached the lease by failing to pay rent and charges, and failing to maintain the premises, causing damages of $7,200. He also alleged that Dowell negligently failed to maintain the premises, causing damages of $7,200. He served extensive interrogatories and document demands on Dowell. The Small Claims complaint was transferred to the Special Civil Part DC docket, as the counterclaim's amount in controversy exceeded the Small Claims jurisdictional amount of $3000. See R. 6:1-2(a)(2) (jurisdictional amount); R. 6:11 (transfer to Special Civil Part from Small Claims Section based on counterclaim amount in controversy).

The matter was tried without a jury over four days in October and November 2010. The parties appeared pro se. The trial witnesses included Dowell, Ameri, as well as Ameri's wife, and two persons whom Ameri often employed in connection with his rental properties.

After the close of evidence, but before a decision on the merits, Ameri filed a motion for a declaration of a mistrial and a new trial. Ameri relied on claims of evidentiary errors, in particular the court's admission into evidence of photographs that Dowell claimed depicted the condition of the apartment in October 2010. Ameri argued during trial, and in his motion, that the photographs lacked appropriate foundation and also should have been excluded because they were not produced in discovery. After initially sustaining the objection, the court admitted them in evidence. Ameri also claimed that the judge demonstrated a lack of impartiality based on his evidentiary and other rulings. He also complained that the court erred in permitting Dowell to introduce evidence notwithstanding her failure to respond to Ameri's discovery demands.

In an oral decision on the merits issued November 10, 2010, the court found Dowell to be the most credible witness, and accepted her version of events. He credited her testimony that she had attempted, unsuccessfully, to return the keys to Ameri on Saturday, May 15, but ultimately returned the keys to him on Monday, May 17. She testified that she had moved her belongings out of the apartment over several days in May, completing the job by May 15, except for a refrigerator that she had removed on May 17. The court found her claim was supported by circumstantial evidence including proofs that she disconnected her cable service at the North First Street apartment on May 11; cable service at a ...

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